25 S.E.2d 232 | Ga. Ct. App. | 1943
1. The motion to dismiss the writ of error is denied.
2. The answer of the defendant failed to set up any defense to the foreclosure proceeding, and the judge did not err in dismissing the answer on oral motion.
3. The appellate division of the civil court of Fulton County did not err in affirming the judgment of the trial court in dismissing the defendant's answer and in entering judgment for the plaintiff in the foreclosure proceeding.
1. The motion to dismiss the bill of exceptions because the plaintiff in error did not except to the order overruling the motion for a new trial is denied. As above stated, when the court dismissed the defendant's answer and entered judgment in favor of the plaintiff the defendant made an oral motion for a new trial, which was at that time overruled. The defendant abandoned his motion for a new trial, but within the time allowed by law entered an appeal to the appellate division of the civil court of Fulton County and assigned error on the judgment dismissing his answer and on the judgment establishing the plaintiff's lien under the retention-of-title contract. None of the transactions in the civil court can be ground for a motion to dismiss the bill of exceptions in this court. In the bill of exceptions in this court there is an assignment of error on the final judgment of the appellate division of the civil court affirming the judgment of the trial judge in that court. See McGee v. Knox,
2. The Code, § 67-1601, provides that a bill of sale or contract retaining title to personal property to secure a debt may be foreclosed in the same manner as mortgages on personal property are foreclosed. Code § 67-701, provides how mortgages on personal *337 property shall be foreclosed. "When an execution shall issue upon the foreclosure of a mortgage on personal property, as hereinbefore directed, the mortgagor or his special agent may file his affidavit of illegality to such execution, in which affidavit he may set up and avail himself of any defense which he might have set up, according to law, in an ordinary suit upon the demand secured by the mortgage, and which goes to show that the amount claimed is not due." Code, § 67-801. It will be seen by an examination of the defendant's answer, which appears above, that no defense to the foreclosure proceeding is set up therein. In fact, it is not responsive to that proceeding, but refers to a trover proceeding. It nowhere denies that the amount claimed or any part thereof is due. Counsel for the plaintiff in error states in his brief that as the amount involved in this proceeding in the civil court of Fulton County is less than $300, the law governing foreclosure of chattel mortgages in justice courts is applicable. But even so, the answer filed fails to set up any defense, as Code § 67-903, dealing with defenses by a mortgagor to a foreclosure proceeding in a justice court, provides: "The mortgagor may avail himself of any defense he may have to such foreclosure, in the same manner and upon the sameconditions as allowed by law in case of foreclosure of chattel mortgages in the superior courts." (Italics ours.)
3. The appellate division of the civil court of Fulton County did not err in affirming the judgment of the trial judge in dismissing the defendant's answer, and in entering judgment for the plaintiff in the foreclosure proceeding.
Judgment affirmed. Stephens, P. J., and Felton, J., concur.